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ELCDismissedNot stated in the judgment· [2019] KEELC 948 (KLR)

Mansukhalal Jesang Maru v Frank Wafula [2019] KEELC 948 (KLR)

Environment and Land Court (High Court station, Kitale)
7 November 2019
MNMwangi Njoroge
1,636 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to halt a land case because the defendant's appeal only concerned a small costs order the plaintiff had already waived.

What this practically means

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Executive summary

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This is a ruling delivered on 7 November 2019 at Kitale by Mwangi Njoroge, Judge, on a notice of motion dated 18 September 2019 filed by the defendant. The defendant sought a stay of proceedings of the entire suit, or execution of any prior or consequential orders, pending an intended appeal (notice of appeal filed and served) against a ruling of 30 April 2019 which had ordered him to pay the plaintiff Kshs.20,000 as adjournment costs before cross-examining PW2. The application was grounded on Order 42 Rule 6 of the Civil Procedure Rules and sections 1A, 1B, 3A, 3B and 63 of the Civil Procedure Act, with claims that the appeal had high chances of success, that the suit would otherwise be closed rendering the appeal nugatory, and that the defendant would suffer irreparable loss not compensable in damages. The plaintiff opposed, citing inordinate delay, waiver of the adjournment costs, the age of the suit, and the defendant's history of obstructing its prosecution. The court traced the suit's chequered history since 2008, noting that most adjournments were occasioned by the defendant. Holding that the intended appeal concerned only costs which the plaintiff had waived as a precondition to hearing, that the plaintiff would be prejudiced by a stay, and that the defendant was wilfully obstructing the case, the court found the application devoid of merit and an abuse of process, dismissed it, and awarded costs to the plaintiff.

Key legal issues

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01

Whether stay of proceedings pending appeal under Order 42 Rule 6 was merited

Holding

The application failed; no substantial loss, nugatory-appeal risk or absence of prejudice was demonstrated, and the application was an abuse of process

Reasoning

The intended appeal related solely to an order for adjournment costs. The plaintiff had undertaken not to insist on payment of those costs before the defence hearing, so the costs award was no longer a hindrance to prosecution of the defence case. Most adjournments had been occasioned by the defendant, whose conduct showed wilful obstruction of a suit filed in 2008. Staying the entire suit would prejudice the plaintiff, whose case had closed a year earlier.

p. 2

Legal principles established

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  • A stay of the entire suit is disproportionate where the only issue in the intended appeal is an order for payment of costs, particularly where the party entitled to costs has waived payment as a precondition to hearing

Court orders

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  1. 1.The application dated 18/9/2019 is dismissed
  2. 2.Costs of the application awarded to the plaintiff

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A, 3B and 63
  • Civil Procedure RulesOrder 42 Rule 6
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules; Sections 1A, 1B, 3A, 3B and 63 of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mansukhalal Jesang Maru v Frank Wafula [2019] KEELC 948 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/948/eng@2019-11-07

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.